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Judgments of Supreme Court of India and High Courts

Shri. Mukund S/O Haribhau … vs Sau. Anjali Mukund Bhartiya And … on 20 December, 2017

Judgment

revn74.15 13

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

CRIMINAL REVISION APPLICATION NO.74 OF 2015

Shri Mukund s/o Haribhau Bhartiya,
Aged about 49 years, Occupation Service,
R/o Vitthalwadi, Kandi, Paratwada,
Taluka Achallpur, District Amravati. ….. Applicant.

:: VERSUS ::

1. Sau. Anjali Mukund Bhartiya,
Aged about 45 years,
Occupation Private Business.

2. Vinay s/o Mukund Bhartiya,
Through Legal Guardian Anjali Mukund Bhartiya,
Aged about 16 years, Occupation Education,
Both R/o C/o Shri M.N. Sarpatwar,
Akshay Vishal Colony, Vimal Nagar,
Near Farshi Stop, Amravati,
Taluka and District Amravati. ….. Non-applicants.

Shri R.R. Vyas, Counsel for the applicant.
Mrs. I.P. Kristi, Counsel for the non-applicants.

CORAM : V.M. DESHPANDE, J.
DATE : DECEMBER 20, 2017.

ORAL JUDGMENT

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1. Rule. Rule made returnable forthwith. Heard

finally by consent of learned counsel Shri R.R. Vyas for the

applicant and learned counsel Mrs. I.P. Kristi for the non-

applicants.

2. Challenge is set up in this revision by the

applicant to judgment and order passed by learned Judge of

the Family Court at Amravati dated 7.4.2015 in Petition No.E-

184 of 2012 filed on behalf of the present non-applicants. By

the impugned order, learned Principal Judge of the Family

Court at Amravati partly allowed the petition filed on behalf

of the present non-applicants under Section 127 of the Code of

Criminal Procedure and directed that the present applicant

shall pay Rs.8,000/- per month towards maintenance for non-

applicant No.1 and Rs.7,000/- per month to non-applicant No.2

towards his maintenance from the date of order i.e. 7.4.2015.

3. According to learned counsel Shri R.R. Vyas for

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the applicant, non-applicant No.1 is not his wife since there is

a decree of divorce; secondly non-applicant No.2 being a son

of a teacher is not required to pay any fees, and thirdly non-

applicant No.1 is doing a part-time job with Dr. Sontakke and

is getting sufficient amount. He, therefore, submits that the

impugned judgment and order is required to be set aside.

4. Per contra, learned counsel Mrs. I.P. Kristi for the

non-applicants opposed the submissions made by learned

counsel Shri R.R. Vyas for the applicant. She supported the

impugned judgment.

5. In the year 2002, learned Judicial Magistrate First

Class, Court No.4 at Amravati allowed the application for

maintenance under Section 125 of the Code of Criminal

Procedure. In the said order, the rights of non-applicant No.1

as wife and non-applicant No.2 as son of present non-

applicant No.1 were crystallized. The said order was never

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challenged by the applicant. With the result, it is an

established fact that the applicant neglected both the non-

applicants though he was bound to maintain them. It is also

an established fact that by virtue of the said order, which

attains finality, non-applicant No.1 was not having any means

to maintain herself and her minor son i.e. non-applicant No.2.

6. It is not in dispute that both non-applicants used

to receive maintenance amounts of Rs.700/- and Rs.800/-

regularly, as granted by learned Judicial Magistrate First

Class.

7. It is also not in dispute that, in the meanwhile,

there was a decree of divorce in between the applicant and

non-applicant No.1 and the status of non-applicant No.1 is a

divorcee of the applicant.

8. It is also not in dispute that as on today, non-

applicant No.1 has not re-married. Even, it is an admitted fact

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that in spite of divorce, the present applicant did not marry

again.

9. On 23.11.2012, the non-applicants presented a

petition in the Family Court at Amravati under Section 127 of

the Code of Criminal Procedure and claimed enhancement of

the maintenance. The said petition was registered as Petition

No.E-184 of 2012. According to the said petition, due to

passage of time from 2002 to 2012, in view of steep rises in the

essential commodities and hike in educational expenses, it is

not possible for the non-applicants to carry on their life

smoothly. They, therefore, claimed that the maintenance be

granted to the tune of Rs.10,000/- to each of the non-

applicants.

10. On being summoned, the applicant appeared and

filed his written statement in the aforesaid petition filed

under Section 127 of the Code of Criminal Procedure. The gist

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of the written statement of the applicant is that after the

decree of divorce, non-applicant No.1 cannot claim

enhancement of the maintenance. There is no hike in the

educational expenses. Since non-applicant No.2 is a son of a

teacher, she is not required to pay any fees as per the rules

and non-applicant No.1 is working as a part-time employee of

Dr. Sontakke and is getting monthly salary of Rs.5,000/- per

month. It is also stated that the applicant is under an

obligation to maintain his aged parents. He, therefore, prayed

that the application be dismissed. Both the parties entered

into the witness box.

11. In the cross-examination of the applicant, the

applicant has stated as under:

“xSjvtZnkj dz-2 gk ekk eqyxk vkgs- eyk ekfgrh

ukgh dh fou; 10 O;k oxkZr f’kdr vkgs- gs Eg.k.ks

[kjs vkgs dh f’k{k.kkpk [kpZ gk fnolsafnol okrk vkgs-

gs Eg.k.ks [kjs ukgh dh fou;P;k ckcrhr f’k{k.kkpk [kpZ

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okysyk vkgs- gs Eg.k.ks [kjs vkgs dh vatyh uksdjhl

vkgs fdaok fryk mRiUukps lk/ku vkgs gs n’kZfo.;kdfjrk

eh dks.krkgh dkxni++ nk[ky dssysyk ukgh-”

The applicant himself, thus, has admitted that

there is a hike in the educational expenses. It is admitted by

him that non-applicant No.2 is taking education in “Manibai

Gujartati High School” which is one of the reputed schools in

the Amravati City. Though in the written statement it is

claimed by the applicant that non-applicant No.1 is working

as a part-time employee with Dr. Sontakke and is getting

Rs.5,000/- per month by way of salary, as reproduced herein

above, he has not filed any document to show the same.

Further, it was always open for the applicant to call the said

doctor in evidence to establish the said fact, however no

attempt was made on behalf of the applicant in that behalf.

12. Consequently, it is clear that just for the sake of

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taking defence, the said defence was taken that non-applicant

No.1 is working. However, in absence of any proof thereof, in

my view, learned Principal Judge of the Family Court at

Amravati has rightly discarded the said case to that extent, as

tried to put forth by the applicant.

13. Insofar as parents are concerned, in the cross-

examination of the non-applicants, the applicant had brought

on record that the father of the applicant is getting pension.

Once it was the case of the applicant that his parents are

dependents on him, then the burden was firmly on the

shoulder of the applicant to establish the said fact by

adducing cogent evidence. Nothing was brought on record to

show that how his father is dependent on him. In that

background, the admission brought on record through the

non-applicants by the applicant himself that father of the

applicant is recipient of pension assumes its own importance.

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14. The Court can take a judicial note that there is

steep hike in the essential commodities from the year 2002-

2012. Therefore, the case of the non-applicants, that there is a

hike in the essential commodities and, therefore, the non-

applicants require enhanced maintenance, cannot be

discarded. Further, as per Exhibit 47, which is a salary

certificate for the month of September 2013, the salary of the

applicant is to the tune of Rs.34,822/-. During the course of the

oral submissions before this Court, learned counsel Shri R.R.

Vyas for the applicant has submitted that in the year 2002 the

salary of the applicant was Rs.8,000/-. Thus, there is at least

hike of four times of the salary of year 2002. Further, merely

because there is a divorce, the applicant cannot absolve his

responsibility to maintain non-applicants since it is not his

case that she has re-married. Consequently, in my view, no

case is made out for interference in a well reasoned judgment

of learned Judge of the Family Court. Hence, the revision is

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dismissed. However, there shall be no order as to costs. Rule

is discharged.

15. As per orders passed by this Court on 14.7.2016,

the applicant has deposited amount by way of maintenance

regularly and that amount is lying with the Registry of this

Court since the said amount is towards the maintenance of

the non-applicants. The non-applicants are permitted to

withdraw the said amount. Registry is directed to permit the

non-applicants to withdraw the amount deposited by the

applicant in view of order dated 14.7.2016.

JUDGE

!! BRW !!

…../-

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